J.D. Kapoor, J.

1. This is a suit for permanent injunction restraining infringement of trade mark, copyright, passing off, rendition of accounts. However the relief for rendition of accounts and delivery have been given up.

2. The plaintiff is engaged in the business of manufacture and sale of Ayurvedic and patent medicines since its inception. In the year 1951 the plaintiff adopted trade mark DESTROL for a medicinal preparation of its manufacture and sale. The trade mark DESTROL has been used by the plaintiff continuously and extensively in the course of trade and has acquired a tremendous reputation over the course of time. The plaintiff avers that it is also the registered proprietor of the mark DESTROL by virtue of registration No. 151060 dated 13.10.1951 which is valid, subsisting and in full legal force. This registration was originally granted in favour of Mr. R.P. Grover and Mr. Vijay Grover.

3. The said medicinal preparation of the plaintiffs manufacture is sold in packing bearing a distinctive and unique label. The essential and distinct features of the said label have been described in para 7 of the plaint.

4. The statement of sales as well as advertisement and other sales promotion expenditure incurred by the plaintiff since 1981-82 have been detailed in para 8.

5. It is alleged that the defendants have commenced the manufacture and sale of a similar medicinal preparation under a deceptively similar mark DESTRO. The adoption of the mark DESTRO in respect of medicinal preparation for identical use is actuated by malafides and with the intention of encashing on the goodwill and reputation of the plaintiff. The adoption and use of the impugned mark which is visually, structurally and phonetically similar to the plaintiffs mark DESTROL amounts to an infringement of the registration No. 151060 dated 13.10.1951 and of the copy right and also constitutes act of passing off.

6. The features of the impugned label being used by the defendants have been described in para 11 of the plaint. Plaintiff claims that the comparison of both these labels show that the defendants have copied the essential and distinctive features of the plaintiffs label thereby infringing the copyright of the plaintiff.

7. Summons of the suit were duly served upon the defendants but they did not chose to contest and allowed themselves to be proceeded ex parte. The following documents have been proved through affidavit filed by way of evidence :

1. Exhibit P-1 is the deed of partnership.

2. Exhibit P-3 is the registration certificate of the trade mark DESTROL.

3. Exhibit P-4 is the Renewal Certificate.

4. Exhibit P-5 is the label of the plaintiff.

5. Exhibit P-6 is the Copyright Registration Certificate.

6. Exhibit P-7 is the order dated 24th June, 1994 along with the copy of the relevant abstract from Trademark Journal.

7. Exhibit P-8 is the advertisement and promotional.

8. Exhibit P-11 is the specimen of the carton of the defendants product DESTRO.

8. Mark DESTROL which was adopted by the plaintiff in the year 1951 in respect of Ayurvedic preparations, has been used by the plaintiff continuously and extensively since then. However the plaintiff is also the registered proprietor of the said trade mark by virtue of trade mark registration certificate Exhibit P-3 which was renewed from time to time. The trade mark registration was originally granted in favour of the father of the plaintiff and after the death of the father the same was granted in favour of the plaintiff. Originally the defendants were manufacturing and selling DESTROL with the obvious purpose of cashing the goodwill of the plaintiffs product DESTROL. However on receipt of a legal notice the defendants withdrew his product from the market but subsequently reintroduced the product under the mark DESTRO.

9. Sections 13 and 14 of the Copy Right Act are relevant provisions that provide protection to the person who has his copyright registered.

13. Works in which copyright subsists(1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist througout India in the following classes of works, that is to say,

(a) originally literary, dramatic, musical and artistic works;

(b) cinematograph films; and

(c) sound recording.

14. Meaning of copyrightFor the purposes of this Act, copyright means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely

(c) in the case of an artistic work,

(i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;

(ii) to communicate the work to the public;

(iii) to issue copies of the work to the public not being copies already in circulation;

(iv) to include the work in any cinematograph film;

(v) to make any adaptation of the work;

(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in Sub-clauses (i) to (iv).

10. A party acquires exclusive right to protect its mark by virtue of priority in adoption, long continuous and exclusive user and any subsequent user of the deceptively similar mark or trade mark which is of confusing nature on account of sound and look is guilty of infringement of the right of the prior user of the mark as his obvious motive is to trade and encash upon the goodwill and reputation of the prior user. Reputation or goodwill is not established in a day. It is gained over the years and at the huge cost of advertisement.

11. The comparison of the two labels shows that the defendants have reproduced a label of the plaintiff so far as colour combination, label, get up and features appearing on the product, packaging of the plaintiff is concerned it clearly amounts to infringement of the trade mark of the plaintiff including copy right registration. As is apparent the trade mark DESTROL and DESTRO are pronounced as similar and, therefore, mark DESTRO connotes deceptive similarity with DESTROL. The trade mark DESTRO is confusing as to its source so far as the unwary customers are concerned. It also amounts to passing off.

12. I am satisfied that the plaintiff has succeeded in establishing that the defendant has not only committed infringement of the copy right but also of statutory right of the plaintiff with regard to the trade mark DESTROL so far as label is concerned but is also guilty of passing off.

13. The suit is decreed in respect of prayers A & B.